EU Commissioner: Anti-Digital Piracy Law is All But Dead

EUROPE—The whole idea behind the Anti-Counterfeiting Trade Agreement (ACTA)—which late last year and earlier this year was signed (though not ratified) by a number of countries, including the US and EU members—was to bring the world together to address the global fight against digital piracy, such as it is. But, as with so many things political, it appears that the process behind ACTA as much as the provisions contained within it have all but doomed the law to the dustbin of history. At least that is what Neelie Kroes, the European Commissioner for the Digital Agenda, has said is the likely outcome.

"We have recently seen how many thousands of people are willing to protest against rules which they see as constraining the openness and innovation of the internet," Kroes said Friday during a conference in Berlin. “This is a strong new political voice. And as a force for openness, I welcome it, even if I do not always agree with everything it says on every subject.

“We are now likely to be in a world without SOPA and without ACTA.”

According to the Wall Street Journal, "Her spokesman agreed that while Ms. Kroes never said ACTA was dead, the 'political reality' is that it is."

The political reality, in other words, is that none of the countries that are signatories to ACTA have followed up with an official ratification of their provisional approvals because, Kroes is implying, they lack the political courage to act in defiance of public protests throughout Europe.

Of course, opposition to ACTA has emanated from the States, as well, with obvious peeps like the Electronic Frontier Foundation weighing in strongly against it, as well as less obvious critics like Forbes, which compared it quite unfavorably in an article titled, "If You Thought SOPA Was Bad, Just Wait Until You Meet ACTA."

In the five years since a handful of countries began negotiations on ACTA, there have been steady modifications to the law in response to valid concerns expressed by stakeholders. Despite those concessions, however, the negotiating process has steadfastly taken place behind closed doors, and without their participation.

According to Wikipedia, "The secret nature of negotiations has excluded civil society groups, developing countries and the general public from the agreement's negotiation process and it has been described as policy laundering by critics including the Electronic Frontier Foundation (EFF) and the Entertainment Consumers Association."

Regarding the specifics of the law, one of the main complaints with ACTA, as with its American cousin, SOPA, according to PCWorld, is the provision that "would allow countries to force ISPs to hand over information about their customers' online activities if they are suspected of breaching copyright.

"In an effort to appease critics," the article continued, "the Commission, which negotiated the agreement on behalf of the E.U., has asked the European Court of Justice to rule on whether the deal is compatible with E.U. law. Trade Commissioner Karel de Gucht has urged the Parliament to delay voting on ACTA until after it has ruled. But, as observed by Kroes on Friday, that seems unlikely to happen."

In fact, in expressing that view, Kroes, who advocates for an open internet, may have made it a fait accompli.

"We need to wake up and smell the coffee," she said, adding, "But that is not the same as being a lawless wild west."

But a lawless wild west is precisely what we have been living with for several years, and the fallout has re-formed (though some might say deformed) whole industries so they no longer resemble the way they were before. This massive shape-shifting can certainly be seen in the music industry, but perhaps no industry has seen more of a revolution (though some might say devolution) of its reigning business models than has the adult entertainment industry, which is all but unrecognizable from what it was just four or five years ago.

Opportunities remain, of course, but only a few companies could say with a straight face that things are better now than they used to be before the massive global networks sustained by relentless infringement of copyrighted content became the norm.

In a world unable to proceed with any fix to the woefully inadequate Digital Millennium Copyright Act, the current situation is fated to continue, with progress only made through the relatively slow slog of the courts, such as the recent High Court ruling ordering the blocking of The Pirate Bay. A slog may indeed be far preferable to an overreaching law that stymies the free flow of ideas and content, but even there progress may come in fits and starts. The High Court ruling was met with protest, after all, and the usual complaint that any such blockade is not only wrong but doomed to fail.

In the few days since the ruling was handed down, those prognostications have been borne out, as virtual private networks have seen a burst of new users, and The Pirate Bay, on the very first day of the court-ordered block, saw an increase in visitors to the tune of 12 million people!

That may seem like a terrible defeat for copyright owners, but it's really just the latest twist in an escalating war that pits seemingly intractable antagonists, each of whom acknowledges only their own reality, against one another. The unraveling of ACTA/SOPA may be a setback for the one side, but as AVN has previously reported, Torrent users in the U.S. will soon experience a shock to the digital cortex when their ISPs start tracking their downloading activity, with a little help from (surprise, surprise) the MPAA and RIAA.

According to TorrentFreak, "Under the agreement a third-party company will collect the IP-addresses of alleged infringers on BitTorrent and other public file-sharing networks. The ISPs will then notify these offenders and tell them that their behavior is unacceptable. After six warnings the ISP may then take a variety of repressive measures, which includes the option to cut off the offender’s connection temporarily."

It's not foolproof by any means, and does not cover cyberlockers and other portals immune to third party searches, but it is a regime of enforcement that bypasses the government in favor of private enforcement, which may or may not turn out to be the preferable way forward. As intolerable as the current situation is, it is also easy to image a partnership between the producers of content and the gateways to that content whose sole purpose is to monitor the behavior of paying customers to the benefit of the producers, fast becoming a marriage made in hell.